IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 334 of 2007()
1. K.T.MOHANAN, S/O.THEYYELAN, AGED 52
... Petitioner
Vs
1. DAMYANTHI, W/O.VISWANATHAN,
... Respondent
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :SRI.N.SUKUMARAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/10/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 334 OF 2007
............................................
DATED THIS THE 24th DAY OF OCTOBER, 2007
JUDGMENT
Defendant in O.S.667 of 1998 on the file of Munsiff Court,
Chittur is the appellant. Respondent is the plaintiff. Respondent
instituted the suit seeking a decree for permanent prohibitory
injunction contending that plaint schedule property is in her
possession and respondent is attempting to trespass into the
property and he has no right to do so. The case of respondent
was that she obtained possession of the property under Ext.A2
gift deed and thereafter she obtained purchase certificate in
respect of the property as per order in O.A.13107 of 1976 of
Land Tribunal, Ottapalam and appellant has no right or
possession over the same. Appellant resisted the suit contending
that Ext.A2 gift deed was not acted upon and respondent did not
obtain possession of the property and the purchase certificate
obtained on the strength of the gift deed is invalid and
respondent is not in possession of the property and therefore she
is not entitled to the decree for injunction sought for.
2. Learned Munsiff framed three issues. Firstly, whether
respondent is in possession of the plaint schedule property,
RSA 334/2007 2
secondly whether respondent is entitled to the decree for
permanent prohibitory injunction sought for and thirdly, reliefs
and costs. On the evidence of PWs 1 to 3, Dws 1 to 3, and Ext.A1
to A5, it was that respondent has established her possession of
plaint schedule property. A decree for injunction was granted.
Appellant challenged the decree and judgment before District
Court, Palakkad in A.S.9 of 2003. Learned Additional District
Judge, on reappreciation of evidence, confirmed the findings of
learned Munsiff and dismissed the appeal. It is challenged in the
second appeal.
3. Learned counsel appearing for appellant was heard. The
argument of the learned counsel is that courts below did not
properly appreciate the evidence and appreciation of evidence
was perverse. It was argued that Ext.A2 gift deed was not acted
upon and pursuant to Ext.A2, possession of the property covered
by Ext.A2 was not obtained by respondent and in such
circumstances, courts below should not have granted the decree
sought for. Learned counsel also argued that the fact that
respondent has filed an application for appointment of Receiver
before the trial court establish that respondent is not in
possession of the property and in such circumstances, the decree
RSA 334/2007 3
granted is unsustainable.
4. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. Being a suit
for injunction, the only question is with regard to the possession.
The question of title was not decided by the courts below.
Learned Munsiff, who had the advantage of seeing and
appreciating the demeanour of witnesses, accepted the evidence
of respondent with regard to factum of possession and found that
respondent has been in possession of the property. First
appellate court, on reappreciation of evidence accepted the same
and found that respondent has been in possession of the
property. The argument of learned counsel is that as respondent
was not examined and instead her son was examined and courts
below should not have accepted that evidence as that of plaintiff.
Reliance was placed on the decision of the Apex Court in Janki
Vashdeo V. Indusind Bank (2005(2)KLT 265).
5. Being a suit for injunction, what is to be proved by
respondent is only factum of possession. That possession can be
proved by the son of respondent, who was examined on behalf of
the respondent. What was considered by Apex court in Janki
Vashdeo’s case(supra) was only the competency of a Power of
RSA 334/2007 4
Attorney to give evidence for plaintiff. That decision does not
hold that son of a plaintiff who has knowledge about the factum
of possession is incompetent to give evidence on that fact. On
going through the judgments of courts below, I cannot accept
the submission of learned counsel that appreciation of evidence
was perverse warranting reappreciation of evidence and
substituting the findings of this court to the concurrent finding
of courts below.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-